Defendant was convicted of violating ORS 475.999 (1999), (1) which
made it unlawful to deliver certain controlled substances "within 1,000 feet of the real
property comprising a public or private elementary, secondary or career school attended
primarily by minors." The issue in this case is whether that statute required defendant to
know that the delivery took place within 1,000 feet of a school. The trial court concluded
that the state did not need to prove defendant's knowledge of the distance from a school.
The Court of Appeals disagreed, holding that, in order to convict defendant, "the jury had
to find that [defendant] knew he was within 1,000 feet of a school." State v. Rutley, 202
Or App 639, 648, 123 P3d 334 (2005). This court allowed the state's petition for review
and now concludes that ORS 475.999 (1999) did not require the state to prove that
defendant acted with that mental state when he made the drug delivery within 1,000 feet
of the school. We reverse in part the decision of the Court of Appeals and affirm the
judgment of the trial court.

The relevant facts are simple and, for purposes of the issue presented here,
undisputed. On November 14, 2001, defendant aided and abetted another person in
selling cocaine to an informant working with an undercover police officer. The sale
occurred within 1,000 feet of a school. As a result, defendant was charged with delivery
of a Schedule II controlled substance, and separately charged with the offense defined in
ORS 475.999 (1999), delivery of a controlled substance within 1,000 feet of a school. As
to the offense defined in ORS 475.999 (1999), the indictment alleged that defendant "did
unlawfully, intentionally and knowingly deliver COCAINE, a Schedule II controlled
substance[,] for consideration, within 1,000 feet of the real property comprising MCCOY
ACADEMY, a public or private elementary, vocational, or secondary school attended
primarily by minors * * *."

At trial, the state presented testimony that it is 683.1 feet from the location
where the drug delivery took place to McCoy Academy. The state also presented
testimony that McCoy Academy had 46 students at the time, 90% of whom were minors,
attending ninth through twelfth grades.

Defendant subsequently moved the trial court for a judgment of acquittal,
asserting that ORS 475.999 (1999) required that the state prove beyond a reasonable
doubt not only that the drug delivery had occurred within 1,000 feet of a school, but also
that defendant knew that the drug delivery was occurring within 1,000 feet of a school.
Defendant argued that, because the state failed to offer evidence proving that he knew he
was within 1,000 feet of the school when he participated in the drug delivery, he was
entitled to a judgment of acquittal on that charge. The trial court rejected that argument.

Relatedly, defendant requested that the jury be instructed that the elements
of that crime included the requirement that defendant "knew that the delivery occurred
within 1,000 feet of real property comprising a public or private elementary school that
was attended primarily by minors." Because the trial court had already rejected
defendant's claim that the statute required knowledge, defendant conceded that that part
of the requested jury instruction should be removed.

A jury found defendant guilty of both the described charges -- of delivering
a controlled substance, and of delivering a controlled substance within 1,000 feet of a
school.

From its most recent cases, the court ultimately identified two principles
regarding when a culpable mental state must be proved. First, the Court of Appeals
concluded that, whenever a criminal statute includes the culpable mental state of
"knowingly," the state must prove that mental state for all statutory elements that describe
either conduct or circumstances. Id. at 645-46. Second, the Court of Appeals concluded
that, whenever an indictment specifies the culpable mental state of "knowingly," the state
also must prove that mental state for all statutory elements that describe either conduct or
circumstances. Id. at 646-47. Because the indictment here charged defendant with
"knowingly" delivering a controlled substance within 1,000 feet of a school, and because
the distance from the school was "either part of the charged act or one of its attendant
circumstances," the Court of Appeals concluded that the state had to prove defendant's
knowledge of the distance from the school. Id. at 647. The Court of Appeals concluded
that the trial court did not err in denying defendant's motion for judgment of acquittal,
because, in the court's view, the state had introduced enough circumstantial evidence to
make the state of defendant's knowledge a jury question. Id. at 647. However, the court
concluded that the jury should have been instructed regarding the knowledge element. Id.
at 647-48. Based on that analysis, the Court of Appeals reversed and remanded for a new
trial. Id. at 648. As noted previously, we allowed the state's petition for review.

Before we turn to the issues relating to defendant's conviction under ORS
475.999 (1999) for delivery of a controlled substance within 1,000 feet of a school, we
note again that defendant was also convicted of a second count, delivery of a schedule II
controlled substance. Defendant does not challenge his conviction on that second count.
We therefore affirm without further discussion that part of the trial court's judgment.

"Except as authorized by ORS 475.005 to 475.285 and 475.940 to
475.995, it is unlawful for any person to:

"(1) Manufacture or deliver a schedule I, II or III controlled
substance within 1,000 feet of the real property comprising a public or
private elementary, secondary or career school attended primarily by
minors.

"(a) Unlawful manufacture or delivery of a controlled substance
within 1,000 feet of a school is a Class A felony."

"Except as provided in ORS 161.105, if a statute defining an offense
does not prescribe a culpable mental state, culpability is nonetheless
required and is established only if a person acts intentionally, knowingly,
recklessly or with criminal negligence."

"Notwithstanding ORS 161.095, a culpable mental state is not
required if:

"* * * * *

"An offense defined by a statute outside the Oregon Criminal Code
clearly indicates a legislative intent to dispense with any culpable mental
state requirement for the offense or for any material element thereof."

In summary, with regard to statutes like ORS 475.999 (1999), in which the
statutory definition does not include an identified culpable mental state, the statutes we
have identified -- ORS 161.095, ORS 161.105, and ORS 161.115 -- are pertinent to the
determination whether a mental state nonetheless must attach to an offense or a material
element of an offense.

Because ORS 475.999 (1999) is an offense defined by a statute outside the
Oregon Criminal Code, we begin by determining in accordance with ORS 161.105(1)(b)
whether the legislature has "clearly indicate[d]" an "intent to dispense" with a culpable
mental state with regard to the material element at issue -- delivery within 1,000 feet of a
school.

In past cases we have observed that the legislature has not expressed what
methodology or criteria this court should use in determining whether a statutory
definition "clearly indicates a legislative intent to dispense with any culpable mental state
requirement." See State v. Miller, 309 Or 362, 366, 788 P2d 974 (1990) (legislature has
not provided criteria concerning what constitutes a clear indication of legislative intent).
In the absence of that legislative direction, this court has stated that statutory silence
alone is not a sufficiently clear indication of legislative intent to dispense with a culpable
mental state, and this court has attempted to determine the legislature's intent by
examining the offense or element of the offense and a variety of indirect indicators to
determine whether the legislature would have had an obvious reason or reasons to omit a
culpable mental state. See Statev. Cho, 297 Or 195, 201, 681 P2d 1152 (1984) ("The
mere enactment of a crime without an expressly required culpable mental state is
insufficient to establish such a clear indication."); Miller, 309 Or at 369(for driving
under the influence of intoxicants, nature of element -- having blood alcohol content of
.08% or more -- indicates no mental state required); State v. Buttrey, 293 Or 575, 582-85,
651 P2d 1075 (1982) (statutory context and legislative history indicate no mental state
required for driving while suspended). We employ that same kind of analysis here.

Beginning with the text, we conclude that the statute evidences a clear
legislative intent to give drug dealers a reason to locate the 1,000-foot school boundary
and stay outside it -- by punishing the failure to do so as the most serious of crimes, a
Class A felony. Cf. Oliver Wendell Holmes, Jr., The Common Law 46 (1881) ("The law
threatens certain pains if you do certain things, intending thereby to give you a new
motive for not doing them."). The statutory text leaves no doubt that the legislature
intended to protect children from drug use and the violence and other negative influences
that accompany drug delivery. Children are exposed to those negative influences when
drugs are delivered near schools, regardless of whether the dealers know they are within
1,000 feet of a school. In our view, requiring a knowing mental state with regard to the
distance element would work against the obvious legislative purpose, in that it would
create an incentive for drug dealers not to identify schools, and not to take into
consideration their distance from them in engaging in their illegal activity.

Furthermore, the statute at issue here required that the 1,000-foot distance
be measured from "the real property comprising a public or private elementary, secondary
or career school attended primarily by minors." ORS 475.999(1) (1999). In that phrase,
the 1,000-foot distance is not logically or grammatically separated from the other school-related requirements. Defendant's argument, if it applies to the 1,000-foot element,
applies equally to all. Attaching a culpable mental state of "knowingly" to each of those
requirements -- a result that defendant's argument would require -- would enable a
defendant to defeat the charge by virtue of the state's inability to prove affirmatively
defendant's knowledge of the existence of the school, of the nature of the school, or of the
composition of the student body. We have no hesitation in concluding that the likelihood
that the legislature intended to require the state to prove a defendant's culpable mental
state as to that collectivity of school-related requirements is virtually nonexistent.

In the face of the foregoing logical exposition, defendant has not argued
that any other source of law -- statutory or constitutional -- nonetheless requires that a
mental state attach to the 1,000-foot distance element, and we know of none. Based on
the legislature's obvious intent to protect children from predatory drug dealers by
enhancing the penalty for delivery in the vicinity of a school, the grammatical structure of
the statute's text, and the nature of the element (no mental state is logically required for a
distance element), we conclude that the legislature's omission of a mental state was
purposeful with regard to the 1,000 foot distance element. In accordance with ORS
161.105(1)(b), we hold that, in defining the offense, the legislature has "clearly
indicate[d] an intent to dispense with [a] culpable mental state" as to the 1,000-foot
distance element.

The decision of the Court of Appeals is affirmed in part and reversed in
part. The judgment of the trial court is affirmed.

1.
That statute was renumbered as ORS 475.904 in 2005. Because the events at issue
here took place in late 2001, we refer to the version of ORS 475.999 printed in the 1999
Oregon Revised Statutes. ORS 475.999 (1999) has since been amended by Oregon Laws
2005, ch 22, § 349, and Oregon Laws 2005, ch 708, § 41.

We should add that there has been a third amendment to ORS 475.999
(1999), one not found in the amendment history printed in the 2001 Oregon Revised
Statutes and later. In 2001, the legislature provided that ORS 475.999 was made "part of
ORS 475.940 to 475.995." Oregon Laws 2001, ch 870, § 20. At least three statutes that
had previously referred to "ORS 475.940 to 475.995" were changed to read "ORS
475.940 to 475.999": ORS 475.275, ORS 475.285, and ORS 475.999(1). However, the
amendment histories for ORS 475.275, ORS 475.285, and ORS 475.999, as printed in the
Oregon Revised Statutes, do not identify the 2001 legislation. The legislature or
legislative counsel may wish to take some corrective action.

3.
The requirement of both an act and a culpable mental state for criminal liability is
not new. See, e.g., William Blackstone, 4 Commentaries on the Laws of England *21
(1769) ("[T]o constitute a crime against human laws, there must be first, a vicious will;
and, secondly, an unlawful act consequent upon such vicious will." (Spelling
regularized.)).

"(7) 'Intentionally' or 'with intent,' when used with respect to a result
or to conduct described by a statute defining an offense, means that a person
acts with a conscious objective to cause the result or to engage in the
conduct so described.

"(8) 'Knowingly' or 'with knowledge,' when used with respect to
conduct or to a circumstance described by a statute defining an offense,
means that a person acts with an awareness that the conduct of the person is
of a nature so described or that a circumstance so described exists.

"(9) 'Recklessly,' when used with respect to a result or to a
circumstance described by a statute defining an offense, means that a person
is aware of and consciously disregards a substantial and unjustifiable risk
that the result will occur or that the circumstance exists. * * *

"(10) 'Criminal negligence' or 'criminally negligent,' when used with
respect to a result or to a circumstance described by a statute defining an
offense, means that a person fails to be aware of a substantial and
unjustifiable risk that the result will occur or that the circumstance
exists. * * *"

"Except as otherwise expressly provided, or unless
the context requires otherwise, the provisions of
chapter 743, Oregon Laws 1971, shall govern the
construction of and punishment for any offense defined
outside chapter 743, Oregon Laws 1971, and committed
after January 1, 1972, as well as the construction and
application of any defense to a prosecution for such an
offense."

8.
The statutory directive to imply a culpable mental state is
consistent with one of the declared purposes of the Oregon
Criminal Code -- to "limit the condemnation of conduct as
criminal when it is without fault." ORS 161.025(1)(d).

9.
Our disposition of the issue should not be read as
accepting the Court of Appeals' proposition that the state may be
bound by the words of an indictment to prove a particular mental
state respecting an offense, even if the legislature did not
intend to require such proof.

10.
Effective January 1, 2002, ORS 475.999 was "added to and made a part of"
Oregon's Uniform Controlled Substances Act. Oregon Laws 2001, ch 870, § 20 (making
ORS 475.999 "part of ORS 475.940 to 475.995"); id. at § 33 (effective date); see ORS
475.285 (1999) ("ORS * * * 475.940 to 475.995 may be cited as the Uniform Controlled
Substances Act."). As part of the Uniform Controlled Substances Act, the legislature has
directed that it should be "so applied and construed as to effectuate its general purpose to
make uniform the law * * * among those states which enact similar laws." ORS 475.275
(1999). We offer no opinion on how -- if at all -- the 2001 amendment may have affected
the culpable mental state requirement of the statute.